A Web of Confusion with Photo Copyright

The growth of the World Wide Web and Social Media sites has given photographers more opportunities and choices when it comes to sharing photos and self-promotion. However you may be giving others the chance to copy, use and distribute your images without the site giving you compensation or credit. It all comes down to the “Terms of Service (TOS)” agreement--that whether you know it or not, you agree to by posting to, or using a site. Copyright and photography is something that many, including myself, know little about. We all assume that when we snap the shutter, we own the image that is captured. While that is true, if you are not careful, you can unknowingly give others a royalty-free unrestricted right to do whatever they please with you pictures. All Social Media sites, such as Twitpic and Facebook, have Term of Service agreements. Depending on the wording of those agreements, you could be giving away your work.

Last year, following the earthquake in Haiti, photographer Daniel Morel captured a photo of a woman crawling from the rubble of a building and then he shared a high resolution copy of the image along with 12 others on Twitpic. He included contact information, hoping that photo agencies and publications would contact him regarding the rights to publish the images. Several did, including the Washington Post and Associated Press, but most outlets that distributed or used his images did not compensate him and instead one agency, the AFP (i.e. Agence France-Presse) sued Morel. After Morel posted his images, a man in the Dominican Republic copied them and posted them on Twitpic as his own. Many agencies took those images and then used them asserting that Twitters Terms of Service allowed for them to use, copy and distribute the images, also stating that Morel did not specify limits on how the photos should be credited. Morel admitted that he was not familiar that Twitter TOS Twitpic had a separate TOS. Thus, in December 2010, a New York court rejected the argument that the Twitter/Twitpic TOS permitted the agencies to redistribute the images. The case is still slated for a jury trial unless a settlement is reached.

So, what is the moral of this story? Familiarize yourself with the Terms of Service (TOS) for every site that you use to post images, and check it regularly because they can change. While these sites have rules regarding copyright and use, not everyone out there is going to follow the rules. Most of us will not have an iconic image of a worldwide media story as Morel did, and may never even realize that our images are being utilized. So…a good rule of thumb would be to not post anything that you don’t want to get out there because once it is on the web, you can be assured that if someone wants it, they can certainly find a way to get it.

Rich’s suggestions:• Always post low resolution copies that are only suitable for web viewing. • Put copyright and contact information in the metatdata of the photos, but be aware that some sites, including Facebook, strip the data during uploading. • If able, put a watermark on your images.• Be aware of the TOS, your personal privacy settings, and your rights for the sites that you use. Most sites have the rights to use your images, some sites such as Photobucket. You give those rights to everyone. Sites such as Facebook also depend on your privacy settings and who has access to view and take your images. With Facebook, you give them the rights to use your images however they like. If you have your privacy settings for “Everyone” to view, it means absolutely that: anyone can take anything from your profile, whether they’re a member of Facebook or not.

I am including the link and excerts from many of the most popular sites including: Twitpic, Yahoo/Flickr, Facebook, and Photobucket. Be sure to check them out yourself, because they all have the right to change the agreement at anytime. I also suggest that you check out the American Society of Media Photographers post on Social Media Terms of Service at the link below:

For clarity, you retain all of your ownership rights in your Content. However, by submitting Content to Twitpic, you hereby grant Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service. The above licenses granted by you in media Content you submit to the Service terminate within a commercially reasonable time after you remove or delete your media from the Service. You understand and agree, however, that Twitpic may retain, but not display, distribute, or perform, server copies of your media that have been removed or deleted. The above licenses granted by you in user comments you submit are perpetual and irrevocable.

CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE YAHOO! SERVICES

Yahoo! does not claim ownership of Content you submit or make available for inclusion on the Yahoo! Services. However, with respect to Content you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services, you grant Yahoo! the following worldwide, royalty-free and non-exclusive license(s), as applicable:

1.With respect to Content you submit or make available for inclusion on publicly accessible areas of Yahoo! Groups, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Yahoo! Services solely for the purposes of providing and promoting the specific Yahoo! Group to which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the Yahoo! Services and will terminate at the time you remove or Yahoo! removes such Content from the Yahoo! Services.

2. With respect to photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services other than Yahoo! Groups, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Yahoo! Services solely for the purpose for which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the Yahoo! Services and will terminate at the time you remove or Yahoo! removes such Content from the Yahoo! Services.

3. With respect to Content other than photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services other than Yahoo! Groups, the perpetual, irrevocable and fully sublicensable license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content (in whole or in part) and to incorporate such Content into other works in any format or medium now known or later developed.

"Publicly accessible" areas of the Yahoo! Services are those areas of the Yahoo! network of properties that are intended by Yahoo! to be available to the general public. By way of example, publicly accessible areas of the Yahoo! Services would include Yahoo! Message Boards and portions of Yahoo! Groups and Flickr that are open to both members and visitors. However, publicly accessible areas of the Yahoo! Services would not include portions of Yahoo! Groups that are limited to members, Yahoo! services intended for private communication such as Yahoo! Mail or Yahoo! Messenger, or areas off of the Yahoo! network of properties such as portions of World Wide Web sites that are accessible via hypertext or other links but are not hosted or served by Yahoo!.

You can utilze the creative commons license on Flicker but be aware that not everyone is going to pay attention and follow the guidelines of the license.

Flickr Creative Commons LicenseAttribution means:You let others copy, distribute, display, and perform your copyrighted work - and derivative works based upon it - but only if they give you credit.

Noncommercial icon Noncommercial means:You let others copy, distribute, display, and perform your work - and derivative works based upon it - but for noncommercial purposes only.

No Derivative Works icon No Derivative Works means:You let others copy, distribute, display, and perform only verbatim copies of your work, not derivative works based upon it.

Share Alike iconShare Alike means:You allow others to distribute derivative works only under a license identical to the license that governs your work.

This Statement of Rights and Responsibilities ("Statement") derives from the Facebook Principles, and governs our relationship with users and others who interact with Facebook. By using or accessing Facebook, you agree to this Statement.

1. PrivacyYour privacy is very important to us. We designed our Privacy Policy to make important disclosures about how you can use Facebook to share with others and how we collect and can use your content and information. We encourage you to read the Privacy Policy, and to use it to help make informed decisions.

2. Sharing Your Content and InformationYou own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. In addition:1. For content that is covered by intellectual property rights, like photos and videos ("IP content"), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook ("IP License"). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.2. When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).3. When you use an application, your content and information is shared with the application. We require applications to respect your privacy, and your agreement with that application will control how the application can use, store, and transfer that content and information. (To learn more about Platform, read our Privacy Policy and Platform Page.)4. When you publish content or information using the "everyone" setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture).5. We always appreciate your feedback or other suggestions about Facebook, but you understand that we may use them without any obligation to compensate you for them (just as you have no obligation to offer them).

o 6.1 Photobucket does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, "Content") that you post on or through the Photobucket Services. By displaying or publishing ("posting") any Content on or through the Photobucket Services, you hereby grant to Photobucket and other users a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content marked "private" will not be distributed outside the Photobucket Services. Photobucket and/or other Users may copy, print or display publicly available Content outside of the Photobucket Services, including without limitation, via the Site or third party websites or applications (for example, services allowing Users to order prints of Content or t-shirts and similar items containing Content). After you remove your Content from the Photobucket Website we will cease distribution as soon as practicable, and at such time when distribution ceases, the license to such Content will terminate. If after we have distributed your Content outside the Photobucket Website you change the Content’s privacy setting to "private," we will cease any further distribution of such "private" Content outside the Photobucket Website as soon as practicable. Some of the Photobucket Services are supported by advertising revenue and may display advertisements and promotions, and you hereby agree that Photobucket may place such advertising and promotions on the Photobucket Services or on, about, or in conjunction with your Content. The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you.

you will retain ownership of such Submissions, and you hereby grant us and our designees a worldwide, non-exclusive, sublicenseable (through multiple tiers), assignable, royalty-free, fully paid-up, perpetual, irrevocable right to use, reproduce, distribute (through multiple tiers), create derivative works of, and publicly display and perform (publicly or otherwise) such Submissions, solely in connection with the Service (including without limitation for purposes of promoting the Service).

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Thank you for a most enlightening investigation and article. I currently subscribe to PB because they have unlimited, hi-res, block uploads, and it seems as if their interface is easier for non-members to use to access my photos. I have a lot of photos stored there.

Most of My photos are taken at public schools and at school related events, even if they are off campus. All of my subjects (or their parents) have signed limited use agreements that do not extend beyond the local board or related organization at the state level.

Your info about PB was disturbing to me as it seems as if our agreement with our subjects could be violated by PB's TOU.

Do you know if their policy can be modified to better protect the rights of the subject? I thought my privacy settings would do it.

If not, do you, or ASMP, have a list of photo storage sites that don't claim any rights to the origional works of others? I am not worried about loosing $$$ as much as I am about protecting my students. However, if I could get paid for some appropriate use, it would help me recoup my expenses of maintaining a fairly decent bag of Nikons, two SB-800s, and a number of lenses.

I'm already paying PB for their premium service, so if I have to pay a service, it is in the budget - if it isn't over priced or tied to a membership in an photo organization. I do take photos at state events where 20 to 30 administrators will review the uploads and download shots of their students for their own use. Therefore, the images need to be at the highest resolution.

I just need to keep casual browers out.

Any help would be appreciated.

Blue Tic Hound getting pulled in by the digital undertow. I'm still depressed over the whole mess surrounding Kodachrome.

If you are using Photobucket then I do not believe there is anything you can do about the usage rights. While you maintain copyright to the images, the TOS states that you give any user the right to take and use your photos any way they would like. Basically users can copy, reproduce, print and even put your images on tee shirts if they want. I am not sure about how the Photobucket privacy settings work but because of the ease of access, one of the reasons you use it to begin with, it would appear that anyone that can see your images can take them and use them however they would like. I will be following up with another blog on usage over the weekend which might help as well.

After looking over Photobucket's T.O.S. again I realized that they do differentiate between "Public" and "Private" usage rights. In the T.O.S. it states: "except Content marked "private" will not be distributed outside the Photobucket Services." Knowing and using the privacy settings should reduce the chances of your images getting unwanted views.

Please look over my most recent Blog about Usage maybe that will help clear up any further questions.